Burden of Producing Evidence
“‘Burden of producing evidence’ means the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue.” (Evid. Code sec. 110.)
Burden of Proof
“‘Burden of proof’ means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court. The burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact” according to one of the three standards of proof. (Evid. Code sec. 115.)
“The effect of a presumption affecting the burden of producing evidence is to require the trier of fact [which in family court is the judicial officer, not a jury] to assume the existence of a presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.” (Evid. Code sec. 604.) It is a presumption to facilitate the determination of a proceeding in which the presumption is applied rather than to promote some other public policy. (Evid. Code sec. 603.)
The effect of a presumption affecting the burden of proof is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact. (Evid. Code sec. 606.) It promotes public policy other than facilitating the determination of a proceeding in which it is applied. (Evid. Code sec. 605.)
An example of a presumption affecting the burden of proof (meaning it serves some public policy other than the determination of issues in a court proceeding) in family court occurs, for example, when a domestic violence restraining order request is granted and the restrained person is involved in a child custody dispute. Family Code section 3044 states:
“(a) Upon a finding by the court that a party seeking custody of children has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical custody or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence. . . .”
Hence, when Family Code section 3044(a) is triggered, it is not to assist in the determination of the action but as a matter of public policy to require evidence that custody to a perpetrator of domestic violence is in the best interest of a child. The burden of proof shifts to the perpetrator of domestic violence to prove by a preponderance of the evidence that his or her award of sole or joint physical custody of the child(ren) is in the best interest of the child(ren). The judicial officer must consider the factors provided by the Legislature in Family Code sec. 3044(b) when determining whether the evidence overcomes the presumption.
The Three Standards of Proof
In California family law proceedings, there are three standards of proof (i.e., requisite degrees of proof), prioritized here from the least difficult standard to most: 1) by a preponderance of the evidence; 2) by clear and convincing evidence; and, 3) beyond a reasonable doubt. The less difficult the standard of proof is to meet, the higher the risk of error.
Proof by a preponderance of the evidence “‘means what it says, viz., that the evidence on one side outweighs, preponderates over, is more than, the evidence on the other side, not necessarily in number of witnesses or quantity, but in its effect on those to whom it is addressed.’ ” (Glage v. Hawes Firearms Co. (1990).) The preponderance-of-the-evidence standard “simply requires the trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence.’” (In re Angelia P. (1981) It is the default standard, unless a statute requires a higher standard (level) of proof. (Evid. Code sec. 115.)
Proof by clear and convincing evidence means the proof is “so clear as to leave no substantial doubt,” or is “sufficiently strong to command the unhesitating assent of every reasonable mind.” (In re Angelia P. (1981).) “‘Clear and convincing’ evidence requires a finding of high probability.” (In re Angelia P. (1981).) For instance, it is required “‘where particularly important individual interests or rights are at stake,’ such as the termination of parental rights, involuntary commitment, and deportation. . . .” (Weiner v. Fleischman (1991) [citation] and where the state seeks to sever a parent’s liberty interest in the care, custody and management of the child (Santosky v. Kramer (1982)[the Supreme Court of the United States held it to be a violation of 14th Amendment procedural due process to use the preponderance of the evidence standard] as in where a nonparent seeks custody of a child over the objection of a parent (see Family Code sec. 3041).
Proof beyond a reasonable doubt means “proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.” (Cal. Crim. Jury Instr., CA No. 220.)
In family court, the only time proof beyond a reasonable doubt is the standard is when a party to a family law proceeding has filed a request for an order that the other party (or a third party joined as a claimant) be found in contempt of court.
A request that a party be found in contempt is civil in nature (as opposed to criminal in nature) if the contemnor has the ability to terminate the sanction (punishment). (Hicks on Behalf of Feiock v. Feiock (1988)[among other things, the Supreme Court of the United States ruled that because it was unclear from the trial court’s order whether just complying with the sanction (paying the arrearages) would have purged an otherwise determinate sentence, the Court could not determine whether the contempt was civil or criminal in nature and therefore whether due process had been violated by burden shifting].) For instance, a witness other than the defendant that refuses to testify is found in civil contempt of court and jailed for a specific term unless and until deciding to testify. Contempt for violating a current family court order is said to be quasi-criminal in nature, because the contemnor has no ability to modify the sanction once it is ordered..
While a request for a citation of contempt in family court is a civil proceeding, it is typically quasi-criminal in nature (because most contempt trials are based on the violation of a court order) which means the other party (the defendant, i.e., the alleged contemnor) is entitled to most (but not all) of his or her constitutional rights including the right to be represented by counsel and to remain silent and not be a witness against him or herself, at all stages of the proceeding because the penalty can include jail time. The defendant is appointed counsel if he or she cannot afford one, and arraigned and a trial date is set.
At trial, the prosecuting party has the burden of proving each element of the violation of a court order beyond a reasonable doubt. Those elements are: a prior lawful order; the defendant’s knowledge of the order; and, noncompliance with the order. The burden is not on the defendant to prove that the elements of the violation of the court order are not satisfied. The Supreme Court of the United States has stated, however, that the law can require a defendant to prove by a preponderance of the evidence any defenses. For instance, where the contempt proceeding is based on a failure to pay child support, an affirmative (complete) defense is that the defendant had no ability to pay.
One of the major differences between a quasi-criminal proceeding and a criminal proceeding is that the defendant does not have a right to a jury. The judicial officer acts as the finder of fact. That is, there is no jury in family law civil contempt proceedings because the judge sits in its place.
Alleged violations of court orders for which a party wants the other party to be held in contempt usually, but not always, relate to a failure to follow the parenting plan, failure to pay child support, and failure to pay spousal support.